United Nations Convention on the Rights of the Child (CRC) Article 40(1): States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
Children differ from adults in their development. Their needs are different—more critical as childhood is a short period which includes rapid and fragile cognitive, physical, psychological and social developmental stages. One of the most important developmental peaks happens in adolescence, from between the ages of ten and nineteen. If developmental stages are not supported and nurtured, the window of opportunity for the personal development of the child and the human development to which the child contributes as a member of the human collective can be negatively affected. Harm done to a child may be irreversible or it may take years of resources to remedy, and seriously hampers his/her reintegration in society. One can be a child only once! That’s why children differ from adults.
This developmental scientific knowledge constitutes a “basis for lesser culpability of children in conflict with the law” and therefore “for a separate juvenile justice system and requires a different treatment for children.” (UNCRC, 2007)
This is also why punishment as one of the objectives of criminal justice system cannot be applied to children. Children are not in conflict with the law in a vacuum; cultural, social, economic, political, legal conditions that harm/do injustice to the child and its support system are the main causes for children to be in conflict with the law. Hence, a juvenile justice system is a separate justice system; it cannot be a part of the criminal justice system that is designed by adults for adults.
The juvenile justice system must be a part of a child-friendly justice and a holistic child protection system of a country as enshrined in the UN Convention on the Rights of the Child. Avoiding the deprivation of liberty, fast and fair judicial procedures, rehabilitation and restorative justice are some of the objectives in this system.
The Council of Europe, of which Turkey has been a member since 1949, defines child friendly justice as a system that “gives due consideration to the child’s level of maturity and understanding and the circumstances of in which s/he is in. It means justice that is accessible to the child herself/himself, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity” (Council of Europe, 2010).
It basically underlines the fact that the rights of the child do not end if a child is in conflict with the law; s/he has all the rights legally guaranteed under the CRC, such as right to education, health, participation, protection from violence, play, development, and treatment with inherent dignity of the child.
Approximately 31.2 percent of Turkey's population (76.4 million) is under 18, i.e. children according the Turkish Statistics Office in 2013. The sheer number of children requires a robust child protection system for children. In contrast to this need, 245,080 children were taken to security units, most of them due to an offence and misdemeanour as well as being victims of a crime (please see the chart below for reasons and numbers). At least 117,367 children were in conflict with the law with cases before a court in 2013.1 Most of them were first time offenders and there were at least 44,352 convictions.2 The average number of days of trials were 258 days in juvenile courts and 252 days in heavy penalty juvenile courts as opposed to 251 and 257 days respectively in adult courts in 2013.3 During this period most children were in custody because children and their legal representatives have to prove they are not guilty, a principle that is in conflict with many human rights treaties to which Turkey is party, such as the European Convention for Human Rights where the principle of "presumption of innocence/innocent until proven guilty" is guaranteed and burden of proof is on the adults, not on children.
The juvenile justice system is in development in Turkey. For more than twenty years, Turkish authorities have been working to improve the laws, policies, programmes related to juvenile justice with technical assistance of organisations such as UNICEF. A small number of NGOs has emerged to provide limited legal and psycho-social assistance to children in justice systems and to advocate for their rights to be respected, protected and fulfilled.
In spite of all these efforts, the justice system in Turkey has a long way to go in creating a juvenile justice system that is in line with rights enshrined in CRC and other human rights instruments such as procedural rights to be observed in trials and in appeals, the development and implementation of measures for dealing with children in conflict with the law without resorting to judicial proceedings, and the use of deprivation of liberty only as a measure of last resort.
Neither government agencies nor NGOs working with/for children in justice systems share a working definition of what the principles of juvenile justice system should entail. The numbers provided above clearly show a fact that Turkey’s justice system is not fair for children and it needs a major overhaul. The main shortcomings of the current system may be summarised as follows:
• Legal and policy framework is highly disaggregated and thus does not provide a juvenile justice system with a holistic view of the child as a rights holder;
• There is no rights-based monitoring mechanism that would provide independently derived data regarding children in justice systems;
• The CRC has not been transposed into the national law and national law has not been harmonised with the CRC. Although in 2009 the Ministry of Justice revealed a judicial reform strategy and an action plan to implement the strategy (http://www.sgb.adalet.gov.tr/yrs.html), neither the strategy nor the action plan was approved in or endorsed by the Parliament. The juvenile justice section is limited to the judicial reform strategy and action plan, yet there is an increase in the number of juvenile courts and correction centres. This does not account for the preventive and protective aspects of child protection;
• The accumulated knowledge around juvenile justice issues are not visible, existing information is highly dispersed and cannot easily be made available to experts and NGOs that seek to develop programmes and projects with necessary information. Therefore, without properly knowing the root causes of the problem, sustainable solutions cannot be produced. Information and knowledge is essential to address the root causes of the problem and foster a child-friendly justice system;
• Different aspects of administration of juvenile justice are dealt with by different government ministries and agencies without a holistic consideration of children’s developmental needs and rights. There is no clear legal division of responsibilities, services are scattered and service providers may avoid liability and refer children in need to other agencies leaving children’s needs in limbo and rights infringed;
• There are no complaint and effective remedy mechanisms accessible to children in justice system.
The United Nations Committee on the Rights of the Child, the monitoring body of the Convention on the Rights of the Child (CRC), recommended that Turkish authorities harmonise its laws and reform the social services, justice, education and health systems to better protect children and their rights in 2001 and in 2012. The following are main points for a reform to overcome the shortcomings listed above:
Research
• Comprehensive qualitative and quantitative research is needed in partnership with the non-governmental organizations and the state departments.
• A gap analysis (mapping) through a small-scale desk review and literature survey is required.
• Supporting research projects that have the views of children and young people considered along with those of caregivers and the wider community, with a special focus on the experiences of vulnerable children. Research projects have to make visible the scale and scope of the experiences of children of different ages related to justice system, their situations, and to make their risk and protective factors more evident.
Policy (laws and policies)
• The biggest challenge is the lack of a holistic system protecting all children. Many of the implementations are far from being child-friendly or respectful of child rights. New legislation protecting the interests of children is needed, including the repeal/amendment of laws that define certain acts offences for children.
Programmes (country-wide or scalable programmes, projects)
• Impact evaluations and analysis is required to understand what works and what does not. Organisational and system-wise child rights impact evaluations and analysis need to be supported.
• Help in setting up comprehensive and nationwide response system designed to provide, where appropriate, support and assistance to both child victims and child offenders, rather than only punishment.
• Support peace and human rights education to be strengthened and scaled through system-wise programmes.
• Support work in the slum areas of Turkey, as broken social ties and social support are one of the main causes in contributing children’s getting in conflict with the law.
• Work with media in reporting correct and relevant information on children in conflict with the law should be supported.
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1 Justice Statistics 2013 http://www.adlisicil.adalet.gov.tr/istatistik_2013/39.pdf
2 Justice Statistics 2013 http://www.adlisicil.adalet.gov.tr/istatistik_2013/45.pdf
3 Justice Statistics 2013 http://www.adlisicil.adalet.gov.tr/istatistik_2013/47.pdf
